Prosecution owes public duty to recharge Najib and Irwan — Hanipa ...

(Nov 27): In October 2018, former prime minister Datuk Seri Najib Razak and former Treasury secretary general Tan Sri Dr Mohd Irwan Serigar Abdullah were brought to court to face six criminal charges of criminal breach of trust (CBT) amounting to RM6.6 billion in government funds involving payments to the International Petroleum Investment Company (IPIC). 

The duo were jointly accused of committing all the offences at the Finance Ministry Complex, Putrajaya, between Dec 21, 2016 and Dec 18, 2017. 

They were jointly charged pursuant to Section 409 of the Penal Code, read together with Section 34 of the same code, in their capacity as the then finance minister and Treasury secretary general — entrusted with public money belonging to the government — with committing CBT. 

While the public expected the prosecution was always ready to proceed with the trial, to their utter disappointment and frustration, both the accused were instead granted a discharge not amounting to acquittal (DNAA) by the learned trial judge. 

It goes without saying both have never been declared not guilty by the court. Of course they are entitled to be presumed innocent until proven guilty by the court. For the time being, they are merely conferred a temporary release because of such a DNAA order. 

To be fair to Najib and Irwan, in my view, their lawyers were perfectly right in asking for their clients to be granted a DNAA, though such an order does not necessarily mean a complete discharge and acquittal under the law. Yes, they are not totally free. 

Though the verdict of a DNAA means nothing significant to an accused person under criminal law, in politics it, however, drives home a huge meaning. Yes, it is expected to carry considerable weight. Being a politician, I believe Najib is fully aware of the political mileage he may possibly garner from the DNAA. 

As both Najib and Irwan have been temporarily released by the court, what options are available to the prosecution at this juncture? 

Under the law, the prosecution is given two choices — either to file an appeal against such a decision by the learned High Court judge, or to recharge the duo for the same offences. In other words, the prosecution has the power to reframe all the six charges against both the accused. 

In doing so, the prosecution is definitely not caught by the principle of double jeopardy or res judicata should it decide to re-prosecute Najib and Irwan. After all, both of the accused are not armed with an acquittal verdict. They were only given a DNAA. 

Under the doctrine of double jeopardy or res judicata, a person shall not be allowed to be prosecuted for the same offences twice if they are acquitted for the said offences. Such a doctrine is duly enshrined in Article 7 of the Federal Constitution.

Though the prosecution may also appeal against the decision of the High Court, the appeal, on the other hand, may take time to be finally heard, let alone decided by the Court of Appeal. Ergo, it would be prudent for the prosecution to recharge both Najib and Irwan for the same offences. 

Based on the charges preferred against both Najib and Irwan, they were alleged to have siphoned off RM6.6 billion in government funds involving payments to IPIC. Be that as it may, the public definitely have every right to know what really happened to the said money! 

Having said the above, it is submitted that the prosecution has no alternative but to recharge Najib and Irwan. After all, the prosecution shall remain answerable to the people of Malaysia whose best interests it serves. Failing to do so may tantamount to an abdication of sacred responsibility.

As the Madani government has consistently declared to the whole world that it is serious in combating corruption and abuse of power, we — the people — have legitimate expectations for the government to flex its legal muscles in this kind of case. 

Mohamed Hanipa Maidin is a former deputy minister of law.